Legal & other issues from SG Mishap

[H2Andy]

so do i get a link?

 

[Boatlawyer]

559 So.2d 97


15 Fla. L. Weekly D701


Elizabeth UNDERWOOD, and Charles Underwood, Appellants,
v.
CITY OF NORTH MIAMI, Appellee.


No. 89-1461.


District Court of Appeal of Florida,
Third District.


March 13, 1990.
Rehearing Denied April 20, 1990.

Page 98

Burt E. Redlus and James C. Blecke, Miami, for appellants.

Simon, Schindler & Sandberg and Neil Rose, Miami, for appellee.

Before NESBITT, FERGUSON and JORGENSON, JJ.

PER CURIAM.

Although a municipality has no common-law duty to maintain a grassy parkway, Musetto v. City of Miami Beach, 82 So.2d 595 (Fla.1955); City of Miami Beach v. Quinn, 149 Fla. 326, 5 So.2d 593 (1942); Kass v. City of Miami Beach, 436 So.2d 1086 (Fla. 3d DCA 1983), once a governmental entity undertakes to perform a repair, a duty arises to complete the repair in a non-negligent manner. Slemp v. City of N. Miami, 545 So.2d 256 (Fla.1989); City of St. Petersburg v. Collum, 419 So.2d 1082 (Fla.1982); Shealor v. Ruud, 221 So.2d 765 (Fla. 4th DCA 1969). Because a genuine issue of material fact exists in this case, as to whether the city created a dangerous condition when it removed a regular manhole cover on a grass parkway and replaced it with an allegedly ill-fitting temporary cover, summary judgment for the defendant was improper. Feldstein v. City of Key West, 512 So.2d 217 (Fla. 3d DCA 1987).

Reversed and remanded for further consistent proceedings.




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[H2Andy]

ah ... yeah ...

the issue was whether duty is an issue for the judge to decide or not

you said you had cases that said otherwise. i asked to see them

here, tempting as the language sounds, this case is not applicable.

first, a chamber of commerce is not a government entity. that right there kills your argument. will the Court hold a private entity to the same level of care than it holds a Government entity?

second, they're talking about removing a manhole cover and replacing it with something that didn't quite work. there are no facts on the table that anything like that was done here. a manhole cover is a very dangerous thing, given foot traffic, for someone to mess with. that level of danger does not exist here, as, again, trained divers know that an overhead environment is dangerous and should not be entered without proper training and precautions.

third, i would argue no repair was undertaken on board the Grove. this case is specifically about a repair that was undertaken and not completed properly. no such repair was undertaken on the Grove. welding some entrances shut is not a repair.

fourth, i would argue that a repair in the middle of a city street is nowhere close to welding some entrances but not others in a ship that will only be visited by certified divers. the manhole is a danger to citizens and is hidden. the entrances are obvious dangers, and divers know what happens if they screw up in them.

for those reasons (and some more i'd think up later), this case can not form the basis of holding a chamber of commerce has a duty to protect trained wreck divers from their own failure to follow safe diving practices.

 

[Gombessa]

As of now, my main concern is that this thread may have officially cost West/Lexis charges to accrue. Are we playing for keeps yet?

 

[H2Andy]

nope ... didn't spend a penny

and ... if i remember correctly, you were in the thick of things as well

 

[Boatlawyer]

The Florida Bar gives its members free caselaw research for the state. Only problem is apparently only transactional lawyers can find the cases, so unless they know one, trial lawyers can't retrieve case cites.

 

[H2Andy]

Botlawyer, on a tagent ...

will anyone feel weird diving the Grove now?

 

[Missdirected]

so do i get a link?

No. Nothing for you grasshopper

So how long is it going to take for me to catch up? Or is anyone willing to be kind enough to give me a briefing U guys are used to those, right ?

 

[Boatlawyer]

Don't know, but it's pretty bad timing. Just got an e-mail from DEMA urging members to write state legislators in support of pending funding for artificial reefs. Would guess this tragedy will be raised.

 

[Boatlawyer]

ah ... yeah ...

the issue was whether duty is an issue for the judge to decide or not

you said you had cases that said otherwise. i asked to see them

here, tempting as the language sounds, this case is not applicable.

first, a chamber of commerce is not a government entity. that right there kills your argument. will the Court hold a private entity to the same level of care than it holds a Government entity?

second, they're talking about removing a manhole cover and replacing it with something that didn't quite work. there are no facts on the table that anything like that was done here. a manhole cover is a very dangerous thing, given foot traffic, for someone to mess with. that level of danger does not exist here, as, again, trained divers know that an overhead environment is dangerous and should not be entered without proper training and precautions.

third, i would argue no repair was undertaken on board the Grove. this case is specifically about a repair that was undertaken and not completed properly. no such repair was undertaken on the Grove. welding some entrances shut is not a repair.

fourth, i would argue that a repair in the middle of a city street is nowhere close to welding some entrances but not others in a ship that will only be visited by certified divers. the manhole is a danger to citizens and is hidden. the entrances are obvious dangers, and divers know what happens if they screw up in them.

for those reasons (and some more i'd think up later), this case can not form the basis of holding a chamber of commerce has a duty to protect trained wreck divers from their own failure to follow safe diving practices.

Nice way to hold a game face, hope that nail in your shoe's not hurting too badly!

Of course it's on point. A private entity would certainly have equal or greater obligation to maintain property, once they've assumed the duty to do so. I'd be surprised if that duty weren't also contractual, frankly.

This case won't go to trial for the same reason you've never lost a jury trial. The defense will settle.

Still, I think that artificial reef fever is going to bite some well meaning marine society in the butt. Already we are seeing some blowback from ill conceived "artifical reefing" here in Broward County, where about a million tires dumped as an "artificial reef" are strangling reef life instead of promoting it, and will now have to be removed.

One of the big selling points of the Speigel Grove donation was that it was less expensive to sink it than to dismantle it. No one has audited the medallion donations to my knowledge, and there seems to be a groundswell of support for the whole deadship as artificial reef concept, as is pending now in the legislature, all in the name of purported reef preservation.

So, it seems there is already some lipsticking the pig going on in this area. Sinking deadships in the name of marine preservation, to save money, or worse to hawk medallions for an unaudited society, regardless of who does it, public or private, should be closely scrutinized.